EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, January 20, 2008

Static Cling?: Seventh Circuit Doubts Reliability of STATIC-99 Results In Recent Opinion

The STATIC-99 is an actuarial risk prediction instrument designed to estimate the probability of sexual and violent reconviction for adult males who have already been charged with or convicted of at least one sexual offense against a child or a non-consenting adult.  An expert uses STATIC-99 to match a sex offender's characteristics to characteristics found in studies of convicted sex offenders to determine their likely recidivism rate. 

The Seventh Circuit was recently presented with STATIC-99 evidence in the case, United States v. McIlrath, 2008 WL 90084 (7th Cir. 2008). 31-year old  Christopher McIlrath was on an internet chat room and thought he was chatting with a 15 year-old girl.  He wrote her that he would travel to her state to have sex with her, but the "girl" was actually a detective conducting a sting, and he arrested McIrath upon his arrival.  McIlrath thereafter pleaded guilty to traveling across state lines to have sex with a minor and was sentenced to 46 months imprisonment.  This sentence came after the trial judge discounted forensic psychologist Eric Ostrov's use of STATIC-99 to determine that McIlrath's characteristics matched the characteristics of offenders 9 to 13 percent of whom were found to have repeated their offense.

McIrath subsequently appealed this sentence, claiming that he should have been sentenced just to home confinement.  The Seventh Circuit rejected his argument, first noting that the rules of evidence do not apply to sentencing hearings, meaning that it did not need to address whether STATIC-results are admissible.  The court also noted in passing that in several cases, such as In re Commitment of SImons, 821 N.E.2d 1184, 1192 (Ill. 2004), courts have found STATIC-99 results to be reliable enough to be admissible as expert evidence.  The Seventh CIrcuit, however, found that there are a plethora of problems with STATIC-99:

     -even its advocates only claim that it has "moderate predictive accuracy;"

     -estimates of recidivism are bound to be too low when one is dealing with underreported crimes such as sex offenses; and

     -STATIC-99 has too limited a number of potentially relevant characteristics.

The Seventh Circuit then found that McIlrath had not addressed these criticisms and held that "without any effort by the defendant's lawyer to establish the reliability of Dr. Ostrov's methodology -- or even to explain it -- the judge was entitled to discount his prediction."  Now, as noted, this was not a decision that addressed the admissibility of STATIC-99 results, and maybe McIrath's lawyer simply dropped the ball.  But it certainly seems like the Seventh Circuit was holding that STATIC-99 results are too unreliable to be admissible as expert evidence, and it should be interesting to see how courts in future cases deal with this evidence.



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